Openness of constitutional review: a comparative analysis of how transparency is ensured in ex ante constitutional review

Abstract

Ex ante constitutional review is carried out prior to a law’s entry into force. While judicial in character, it is a politically charged process for various reasons. The body responsible for this task works in close proximity with the legislative process, and the outcome of the review may have considerable political effects. However, the review is based on legal rather than political evaluation. Against this background, the public transparency of ex ante review is challenging in many ways, and there is a fear that increasing the transparency of legislative processes would steer the focus from the decision-makers to the advisors whose impartiality and independence would be endangered. Transparency might also make political decision- making harder. At the same time, transparency of the legislative process may be regarded as an important aspect of promoting public scrutiny and meeting the standards to be expected of democratic states that respect the rule of law. The aim of this chapter is to ascertain the level of transparency of ex ante constitutional review in the legal systems of three countries: Finland, Sweden and France. Based on the analysis of these three systems significant commonalities and differences are identified, and possible reasons to explain the findings are presented.